Bodine v. Wayne Title & Trust Co.

Opinion by Orlady, J., On July 27, 1902, the plaintiff entered into an agreement in writing with W. C. Latch for the purchase of a tract of 142 acres, more or less, of land in Chester county for the consideration of $25,000 ; $200 to be paid on signing the contract, and the balance upon the delivery to the plaintiff “ of a full and satisfactory deed of conveyance for the premises.” He then employed the defendant as a conveyancer “ to examine the title, to see that the title was clear and free of all incumbrances; to draw all necessary papers and to make a settlement and provide for a mortgage for the balance of the purchase price,” and in addition to this, he requested the defendant company to insure the title in fee after it should vest in him. Pursuant to this arrangement the defendant company, acting for the plaintiff as his conveyancer, made an examination of the title, prepared the deed to be executed by Latch to Bodine, excepting thereout “ a strip of land theretofore conveyed to the Pennsylvania Railroad Company by John S. Latch,” a former owner, by a duly recorded deed dated May 2, 1899, and also a mortgage for $20,000 to secure to the grantor the unpaid purchase money. The deed from W. C. Latch to S. L. Bodine was executed and delivered on September 5, 1902, and a title insurance policy of $25,000 was issued by the defendant to S. L.' Bodine dated September 9, 1902. October 6, 1902, the plaintiff paid $36.00 to the defendant as the charge for services rendered as conveyancer, and $62.50 as the consideration for the title insurance policy. In June, 1903, the plaintiff was informed by the Pennsylvania Railroad Company that by a recorded deed of Abraham S. Latch, a former owner of the property, to that company, dated October 6, 1890, it was covenanted that “ the said Abraham S. Latch, his heirs and assigns, shall and will [74] erect good and substantial fences on the line between the land hereby conveyed and his remaining land adjoining the same, and that he and they shall and will at his and their own proper expense at all times hereafter maintain and keep the same in good repair,” and the plaintiff was notified by the railroad company to perform the covenant, of which this defendant was promptly given notice, but it took no action in regard to it. It is conceded that this fencing agreement is an existing and continuing incumbrance on the title, and that it was overlooked or ignored in the search of the title made by the defendant company. This action of trespass was brought to recover damages for the negligent performance of the professional duty of the defendant, while representing the plaintiff as his conveyancer. It is apparent that the undertaking to perform the duties of a conveyancer was independent of the contract to insure the title to the property, and the negligence which resulted in the plaintiff’s damage lay in the nonperformance of the duties of that employment. The function of conveyancer was fully ended when the deed and mortgage were delivered and the settlement made between W. G. Latch and the plaintiff, at which time the plaintiff was informed that there was no defect, lien, charge or incumbrance against the property. The charge for such service was separate of any other relation the company held to the plaintiff. The effects of the respective contracts were widely different, they were not executed at the same time, did not terminate at the same time, and were founded upon independent considerations, and there is no necessary connection between them. The cause of action against the conveyancer was the breach of duty, not the damages, which are only an incident; and it has been uniformly held that the right of action is complete so that the statute of limitations begins to run from the breach, although the damage may not be known or may not in fact occur until afterwards: Lawall v. Groman, 180 Pa. 532. The contract on which this action is founded not only precedes the contract of insurance but is independent of it, so that the question of merger does not arise: 20 Am. & Eng. Ency. of Law, 596; Close v. Zell, 141 Pa. 390; Kemp v. Penna. R. R. Co., 156 Pa. 430 ; Lehman v. Paxton, 7 Pa. Superior Ct. 259; Wilson v. Pearl, 12 Pa. Superior Ct. 66. [75] The plaintiff was liable to the railroad company' under the covenant to erect, maintain and keep in good repair substantial fences on the line between its property and his own. The evidence shows that the covenant covered a distance of 4,270 feet, or 427 panels of the post rail fencing in ordinary use in the neighborhood, of which 152 panels had been built by the railroad company, and for the' erection of which the railroad company had recovered a judgment against the plaintiff, which at the time of the trial of this case was still standing against him. There was undisputed proof of actual loss to and a continuing liability of the plaintiff under the covenant to fence the line common between his land and that of the railroad company, hence he could enforce his right against the conveyancer for negligence before proceeding to test the liability of the grantor, or pursue his right, if he had any, under his policy of insurance. The negligence of the conveyancer which violated its contract is practically conceded, and the plaintiff had the right to sue at once : Mayne on Damages, 7th ed., 120, 185 ; Joyce on Damages, sec. 2078; Rhines v. Evans, 66 Pa. 192; Lawall v. Groman, 180 Pa. 532; Gales v. Hailman, 11 Pa. 515. The dignity of that branch of the practice of the law is stated by Judge Shauswood in Watson v. Muirhead, 57 Pa. 161, as follows : “ The business of a conveyancer is one of great importance and responsibility. It requires an acquaintance with the general principles of the law of real property, and a large amount of practical knowledge, which can only be derived from experience .... The rule of liability for errors of judgment as applied to them ought to be the same as in the case of gentlemen in the practice of law or medicine. It is not a mere art but a science/' If from want of proper knowledge, from a failure to use proper means, or from carelessness in applying those means to the matter' in hand, loss results to his client, the fault is his and he will be responsible. The agreement to maintain perpetually such a fence as is described in this record was a serious incumbrance: Batley v. Foerderer, 162 Pa. 460; Scowden v. Erie Railroad Co., 26 Pa. Superior Ct. 15. In Erie, etc., Railroad Co. v. Johnson, 101 Pa. 555, the court below was requested to charge the jury that the proper measure of damages upon failure to perform the contract to fence was the difference in the market value of the farm, with [76] the covenant on the part of the railroad company performed, and with it not performed. The answer was, “ upon a breach of the contract of defendant to keep and maintain a good and substantial fence on both sides of the line of its road through plaintiff’s farm, the measure of damages for such breach is what it would cost to build, keep and maintain perpetually a good substantial fence on both sides of defendant’s railroad through plaintiff’s farm the length of about 280 rods. In arriving at such measure, it would be a safe rule to capitalize the annual expense; that is to say, what gross sum would produce annually the amount it would cost annually to maintain and keep in repair the fence in question.” In affirming the judgment the Supreme Court said: “Whether the land was good or bad, or whether the farm was great or small, the question, and the only question, was, what would be the cost of the maintenance perpetually of 280 rods of fence:” Wood v. Sharpless, 174 Pa. 588. That case related to the maintenance and proper repair of the fences then upon the land. In this case we have the added element of damage in the cost of original construction. The verdict returned by the jury itemized the damages: Cost of erecting fence, 420 panels at $1.15, $488, and cost of maintenance $660, and cost of repairs $400, or $1,543. Subsequently all over $951 was remitted by the plaintiff and the judgment was entered for the amount represented by the two first items, the erection and maintenance of the fence. These items were justified by the evidence and the rule adopted by the court and jury is in accordance with cases above cited. The judgment is affirmed.